Adelaida Salazar Bautista A/K/A Adelaida Alvarado, Individually and as Next Friend of Maria Jennifer Aide A/K/A Maria Jennifer Alvarado, A. A., A. A., I. S. A., M. A., and E. A., Minors And Irineo Alvarado and Maria Ana Moctezuma v. Trinidad Drilling Limited ( 2015 )

ACCEPTED
01-14-00892-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/13/2015 4:15:35 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00892-CV
In the Court of Appeals FILED IN
1st COURT OF APPEALS
for the First Judicial District HOUSTON, TEXAS
Houston, Texas 4/13/2015 4:15:35 PM
CHRISTOPHER A. PRINE
Clerk
ADELAIDA SALAZAR BAUTISTA A/K/A ADELAIDA ALVARADO,
INDIVIDUALLY AND AS NEXT FRIEND OF MARIA JENNIFER AIDE
A/K/A MARIA JENNIFER ALVARADO, A. A., A. A., I. S. A., M. A., AND E.
A., MINORS; AND IRINEO ALVARADO AND MARIA ANA MOCTEZUMA,
Appellants,
v.
TRINIDAD DRILLING LIMITED,
Appellee.
On Appeal from the
270th Judicial District Court of Harris County
REPLY BRIEF OF APPELLANTS
Respectfully submitted,
By /s/ Geoffrey E. Schorr
Geoffrey E. Schorr
geoff@schorrfirm.com
Texas Bar No. 24029828
A. Jared Aldinger
Texas Bar No. 24068456
jared@schorrfirm.com
SCHORR LAW FIRM, PC
328 W. Interstate 30, Suite 2
Garland, TX 75043
Tel. (972) 226-8860
Fax (972) 226-9787
Hutton W. Sentell
Texas Bar No. 24026655
hsentell@ashmorelaw.com
ASHMORE LAW FIRM, P.C.
3636 Maple Ave.
Dallas, TX 75219
Tel. (214) 559-7202
Fax (214) 520-1550
Andrew P. McCormick
Texas Bar No. 3457100
amccormick@mlm-lawfirm.com
McCORMICK, LANZA & McNEEL, LLP
4950 Bissonnet Street
Bellaire, TX 77401
Tel. (713) 523-0400
Fax (713) 523-0408
ATTORNEYS FOR
PLAINTIFFS/APPELLANTS ADELAIDA
SALAZAR BAUTISTA a/k/a ADELAIDA
ALVARADO, Individually, and as next
friend of MARIA JENNIFER AIDE a/k/a
MARIA JENNIFER ALVARADO, A. A.,
A. A., I. S. A., M. A., and E. A.,, Minors
And
By: /s/ Justin K. Hall
Justin K. Hall
Texas Bar No. 90001828
jkhall@justinkhall.com
328 W Interstate 30, Suite 2
Garland, Texas 75043
Tel. (972) 226-1999
Fax (972) 226-2221
Attorney for Plaintiffs, Irineo Alvarado and
Maria Ana Moctezuma
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Summary of Argument............................................................................1
II. This action is not based on imputed liability or jurisdictional contacts,
and alter-ego or other veil-piercing theories are not at issue. ..............3
III. This Court should apply a de novo review to factual issues, with
inferences drawn in favor of jurisdiction...............................................5
IV. Trinidad Limited is subject to specific jurisdiction based on its own
acts. ..........................................................................................................9
A. Plaintiffs claims are not based on veil piercing; Trinidad Limited is
subject to jurisdiction for its own contacts with drilling operations in
Texas. .....................................................................................................11
B. Michiana supports jurisdiction in this case. ...........................................11
C. Trinidad Limited has not controverted Plaintiffs’ allegations and
evidence of jurisdiction. .........................................................................15
V. Trinidad Limited is also subject to general jurisdiction based on its
own acts. ................................................................................................16
VI. Prayer.....................................................................................................20
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Page iv
INDEX OF AUTHORITIES
Texas cases Page(s)
Arvizu v. Estate of Puckett, 364 S.W.3d 273 (Tex.2012) 18
Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) 4
Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) 18
Fung v. Fischer, 365 S.W.3d 507 (Tex. App.—Austin 2012) 4
Gilcrease v. Garlock, Inc., 211 S.W.3d 448
(Tex. App.—El Paso 2006, no pet.). 8
Glattly v. CMS Viron Corp., 177 S.W.3d 438
(Tex. App.—Houston [1 Dist.] 2005, no pet.) 19
Greenfield Energy, Inc. v. Duprey, 252 S.W.3d 721
(Tex. App.—Houston [14 Dist.] 2008, no. pet.) 4
IHS Cedars Treatment Center of DeSoto, Texas, Inc. v.
Mason,143 S.W.3d 794 (Tex. 2003) 4
Kelly v. Gen. Interior Constr., Inc.,
301 S.W.3d 653 (Tex. 2010) 8
Mackey v. Midland-Odessa Transit, No. 11–13–00083–CV,
2015 WL 1501466 (Tex. App.—Eastland March 31,
2015, no. pet. h.) 7
Michiana Easy Livin' Country, Inc. v. Holten,
168 S.W.3d 777 (Tex. 2005) 12, 13
Moncrief Oil Int'l Inc. v. OAO Gazprom,
414 S.W.3d 142 (Tex. 2013) 9
Nat’l Indus. Sand Ass'n v. Gibson,
897 S.W.2d 769 (Tex. 1995) 5, 8
Otis Elevator Co. v. Parmelee, 850 S.W.2d 179 (Tex. 1993) 6, 7
Page v
RSR Corp. v. Siegmund, 309 S.W.3d 686
(Tex. App.—Dallas 2010, no pet.) 17
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002) 7
Texas Department of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) 7
Federal cases
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) 10
Calder v. Jones, 465 U.S. 783 (1984) 13, 14, 15
Doe v. Catholic Soc. of Religious and Literary Educ.,
2010 WL 345926 (S.D. Tex. 2010) 4
Guidry v. U.S. Tobacco Co., Inc.,
188 F.3d 619 (5th Cir. 1999) 7
Helicopteros Nationales de Columbia,S.A. v. Hall,
466 U.S. 408 (1984) 10, 13
Shaffer v. Heitner, 433 U.S. 186, 204 (1977) 13
Suzlon Wind Energy Corp. v. Shippers Stevedoring Co.,
2008 WL 686206 (S.D. Tex. 2008) 4
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980) 10
Internat’l Shoe v. Washington, 326 U.S. 310 (1945) 19
Page vi
No. 01-14-00892-CV
In the Court of Appeals
for the First Judicial District
Houston, Texas
ADELAIDA SALAZAR BAUTISTA A/K/A ADELAIDA ALVARADO,
INDIVIDUALLY AND AS NEXT FRIEND OF MARIA JENNIFER AIDE
A/K/A MARIA JENNIFER ALVARADO, A. A., A. A., I. S. A., M. A., AND E.
A., MINORS; AND IRINEO ALVARADO AND MARIA ANA MOCTEZUMA,
Appellants,
v.
TRINIDAD DRILLING LIMITED,
Appellee.
On Appeal from the
270th Judicial District Court of Harris County
REPLY BRIEF OF APPELLANTS
I. Summary of Argument
In their opening brief, Plaintiffs/Appellants (“Plaintiffs”) raised three issues.
First, Plaintiffs addressed the standard of review. More specifically, Plaintiffs
demonstrated that a proper reading of Texas Supreme Court precedent indicates
that this Court should apply a de novo review to both facts and law, with any
Page 1
conflicts in the evidence resolved in favor of jurisdiction. See Appellants’ Brief at
10-13.
Next, Plaintiffs demonstrated that Trinidad Drilling Ltd. (“Trinidad
Limited”) is subject to specific jurisdiction in this case, regardless of the standard
of review to be applied. More specifically, Plaintiffs demonstrated that the
undisputed allegations and the great weight and preponderance of evidence show
that Trinidad Limited purposefully availed itself of Texas law—by controlling,
setting policies for, and taking responsibility for aspects of drilling operations in
Texas—and that Plaintiffs claims arise from such contacts with Texas. See
Appellants’ Brief at 13-30.
Finally, Plaintiffs demonstrated that Trinidad Limited maintains continuous
and systematic contacts with Texas—including the continuous physical presence of
a high-level manager maintaining an office in Houston—such that it should feel at
home in the state. As such, Trinidad Limited is also subject to general jurisdiction.
See Appellants’ Brief at 30-33.
Trinidad Limited responds primarily by mischaracterizing Plaintiffs’
arguments. Most prominently, Trinidad Limited argues that Plaintiffs are
attempting to base jurisdiction on contacts of a subsidiary, and that Plaintiffs
therefore must establish that the two companies are alter egos of each other. To
the contrary, Plaintiffs’ allegations and arguments make clear that neither liability
Page 2
nor jurisdiction is based on any imputed acts of a subsidiary. Rather, both liability
and jurisdiction are based on Trinidad Limited’s own acts—i.e., its own
participation in drilling operations in Texas—and those acts are attributable to
Trinidad Limited regardless of whether the drilling itself is conducted by Trinidad
Limited’s own employees, its subsidiary’s employees (as in this case), or
employees of an unaffiliated company.
Because of the pervasiveness of the alter-ego argument in Trinidad
Limited’s response, it is separately addressed in Section II below. The remainder
of Trinidad Limited’s arguments are addressed, as appropriate, in Section III (legal
standards), Section IV (specific jurisdiction), and Section V (general jurisdiction).
II. This action is not based on imputed liability or imputed jurisdictional
contacts, and alter-ego or other veil-piercing theories are not at issue.
Trinidad Limited attempts to confuse the issues by asserting that Plaintiffs’
claims are based on veil-piercing and that Plaintiffs must establish that Trinidad
Limited is the alter ego of its subsidiary in order to maintain jurisdiction.
However, this argument is nothing but a red herring. The allegations of the Third
Amended Complaint make clear that Plaintiffs do not seek to hold Trinidad
Limited liable (or subject to jurisdiction) for any imputed acts of its subsidiary.
Instead, Plaintiffs allege that Trinidad Limited is liable (and subject to jurisdiction)
for its own participation in drilling activities in Texas.
Page 3
There is no mystery in this type of claim. This Court is well aware that an
entity may be vicariously liable for the acts of another person or entity (under
theories such as respondeat superior, alter ego, etc.) and separately liable for its
own acts, such as negligently creating or implementing policies. See, e.g., IHS
Cedars Treatment Center of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 802
(Tex. 2003); Fung v. Fischer, 365 S.W.3d 507, 522-26 (Tex. App.—Austin 2012),
disapproved on other grounds by Certified EMS, Inc. v. Potts, 392 S.W.3d 625,
626-27 (Tex. 2013); Doe v. Catholic Soc. of Religious and Literary Educ., 2010
WL 345926, *1 (S.D. Tex. 2010).
The same principle is equally true in the context of jurisdiction. Suzlon
Wind Energy Corp. v. Shippers Stevedoring Co., 2008 WL 686206, *8 (S.D. Tex.
2008) (separately addressing imputation of contacts and direct contacts);
Greenfield Energy, Inc. v. Duprey, 252 S.W.3d 721, 730 (Tex. App.—Houston [14
Dist.] 2008, no. pet.).
In this case, Plaintiffs do not attempt to impute any contacts of the
subsidiary company to Trinidad Limited; rather, they contend that Trinidad
Limited is subject to jurisdiction based on its own contacts, such as setting policies
for drilling operations in Texas, exercising control over drilling operations in
Texas, and maintaining the physical presence of a high-level manager in Texas.
Such contacts do not depend in the slightest on whether Trinidad Limited controls
Page 4
the internal affairs of its subsidiaries, intermingles funds, etc.; rather, they exist
independently of such issues. In fact, Trinidad Limited’s contacts would apply
with equal force if the other entities involved in the drilling operations were
unaffiliated with Trinidad Limited’s ownership. Thus, the question before the
Court does not involve the relationship between Trinidad Limited and its
subsidiary, but rather between Trinidad Limited and its operations in Texas.
III. This Court should apply a de novo review to factual issues, with
inferences drawn in favor of jurisdiction.
In section IV of their opening brief, Plaintiffs pointed out that various Texas
courts had routinely applied a standard of review—requiring the appellate court to
imply findings in support of the judgment if adequately supported by evidence—
without regard to the context in which it was created. Plaintiffs further pointed out
that this standard does not logically apply to cases declining jurisdiction based on
“cold records,” since the application to this type of situation is contrary to the
underlying principles of Texas law (e.g., placing the burden on defendant of
negating “all bases of jurisdiction”). Nat’l Indus. Sand Ass'n v. Gibson, 897
S.W.2d 769, 772 (Tex. 1995).
In this case, Trinidad Limited does not contend that the Court is bound by
prior precedent to apply the commonly-cited standard. Instead, it argues only that:
(1) the issue is irrelevant; and (2) Plaintiffs’ suggested standard is inconsistent with
Page 5
the fact that Rule 120a allows a special appearance to be decided on a paper
record.
The former argument is partially correct. The Court can decide this appeal
without reaching this issue, but only if it reverses the trial court. In other words,
the Court can find that jurisdiction exists based on the undisputed allegations and
evidence. However, it cannot affirm the trial court without resolving conflicts in
the evidence.
The latter argument—that a paper record inherently requires deference to the
trial court’s decision—simply is illogical. There is no reason why a deferential
standard of review should apply to issues decided on a paper record, and such a
standard is not applied to the bulk of paper-record motions. As the Texas Supreme
Court has explained, “[u]nder these circumstances”—where the trial court bases its
decision solely “on the papers filed and the argument of counsel”—“there are no
factual resolutions to presume in the trial court’s favor.” Otis Elevator Co. v.
Parmelee, 850 S.W.2d 179, 181 (Tex. 1993).
Instead, the standard of review applicable to a particular type of motion is
based on whatever fundamental principles are applicable to that type of motion.
See, e.g., id. (applying standards appropriate for motion for sanctions). For
instance, motions for summary judgment are based on a de novo review, with all
conflicts in evidence resolved against the movant, in accordance with the
Page 6
underlying presumptions for summary judgment. See, e.g., Sw. Elec. Power Co. v.
Grant, 73 S.W.3d 211, 215 (Tex. 2002). The same is true in the context of subject
matter jurisdiction: “When a plea to the jurisdiction challenges the existence of
jurisdictional facts, the trial court considers relevant evidence submitted by the
parties to resolve the jurisdictional issues raised,” and the “appellate court does the
same.” Mackey v. Midland-Odessa Transit, No. 11–13–00083–CV, 2015 WL
1501466, *1 (Tex. App.—Eastland March 31, 2015, no. pet. h.) (citing Texas
Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)).
Thus, the appellate court will uphold jurisdiction (regardless of the trial court’s
decision) if the evidence at least raises a fact question on the existence of
jurisdiction. See, e.g., id. (citing Miranda, 133 S.W.3d at 228). Likewise, federal
courts apply a similar standard in the context of personal jurisdiction—the issue in
this case. Specifically, appellate courts resolve all conflicts in the evidence in
favor of personal jurisdiction. See, e.g., Guidry v. U.S. Tobacco Co., Inc., 188 F.3d
619, 625 (5th Cir. 1999) (“accept[ing] as true the nonmover's allegations and
resolv[ing] all factual disputes in its favor”). In each case, the evidentiary
presumptions are made in accordance with the fundamental policies involved,
rather than blind deference to the trial court, since a paper record involves “no
factual resolutions to presume in the trial court’s favor.” Otis Elevator Co. v.
Parmelee, 850 S.W.2d 179, 181 (Tex. 1993).
Page 7
Indeed, this principle is true even in those rare cases where Texas law has
applied an extremely deferential standard to the trial court based on paper records.
Most obvious is the issue of venue. In cases involving a motion to transfer venue,
the issue is almost always appealed after a final judgment. Thus, policies such as
preserving finality of judgment and judicial efficiency (by avoiding multiple trials)
justify an extraordinary deference to the venue decision, i.e., by searching the
entire record to determine if any probative evidence supports the final venue. See,
e.g., Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 459 (Tex. App.—El Paso 2006,
no pet.). Likewise, in the personal jurisdiction context, the commonly cited
standard can be justified when a special appearance is denied, i.e., when a court
finds jurisdiction exists. See, e.g., Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d
653, 657 (Tex. 2010). This is so because Texas applies an extraordinarily high
burden on a party challenging jurisdiction—requiring the defendant to “negate all
bases of jurisdiction”—and it is therefore appropriate for an appellate court to
affirm an order maintaining jurisdiction whenever there are disputed facts that
could justify such a ruling. Nat’l Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769,
772 (Tex. 1995).
In contrast, there is no logical reason for applying such a standard when the
trial court declines jurisdiction. In such cases, the appellate court should conduct a
de novo review, with all conflicts in the evidence resolved in favor of jurisdiction,
Page 8
in accordance with the underlying principle that the defendant bears a heavy
burden to negate jurisdiction.1 See id. Moreover, principles of judicial efficiency
counsel in favor of a presumption in favor of jurisdiction, as the denial of
jurisdiction will require an entirely new case in a new forum and in many cases
(such as this one) will require duplication of lawsuits. As such, it is appropriate to
apply a de novo review, with all conflicts resolved in favor of jurisdiction, rather
than conflicts being resolved in favor of the trial court’s decision.
In any event, appellate courts always apply a de novo review to issues of
law, and the undisputed facts and evidence are sufficient to reverse the trial court,
for the reasons discussed below. See, e.g., Moncrief Oil Int'l Inc. v. OAO
Gazprom, 414 S.W.3d 142, 150 n.4 (Tex. 2013) (reversing trial court without
deciding the standard of review, because the record justified reversal under any
standard).
IV. Trinidad Limited is subject to specific jurisdiction based on its own acts.
In section V of their opening brief, Plaintiffs demonstrated that the
uncontroverted allegations and evidence are sufficient to subject Trinidad Limited
1
As noted in the opening brief, numerous Texas courts have criticized the commonly-
used standard, but nevertheless believed that the standard was mandated by Texas Supreme
Court precedent. To the contrary, Plaintiffs are unaware of any Texas Supreme Court case that
has issued a holding on this issue, and Trinidad Limited cites none. Instead, it appears the Texas
Supreme Court’s references to this standard are all dicta, as they all: (1) involved a decision
based on live evidence, to which trial-court deference is ordinarily appropriate; (2) involved trial-
court decisions to maintain jurisdiction; or (3) mentioned the standard without applying it,
because the relevant facts were undisputed. In any event, the Texas Supreme Court has now
confirmed that it has now decided the issue, and has left its resolution for another day. Moncrief
Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 n.4 (Tex. 2013).
Page 9
to specific jurisdiction. Specific jurisdiction is established by showing that: (1) the
defendant has “minimum contacts” with the forum state; and (2) the lawsuit “arises
from” or relates to the defendant's contact with the forum state. Helicopteros
Nationales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). In this
context, the “minimum contacts” prong is satisfied when a defendant “purposefully
avails itself of the privilege of conducting activities within the forum State,” such
that the defendant “should reasonably anticipate being haled into court” in the
forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287 (1980).
In this case, Plaintiffs satisfied these factors by demonstrating that
uncontroverted allegations and evidence are sufficient to show:
 That Plaintiffs’ claims “arise from” allegations that Trinidad Limited
set policies for, and exercised control over, the safety aspect of
drilling operations; see Appellants’ Brief at 14-16;
 That Trinidad Limited did set policies for, and exercise control over,
the safety aspect of drilling operations, see Appellants’ Brief at 16-24;
 That Trinidad Limited knew that, intended that, and took actions to
ensure that its policies and control would govern such operations in
the state of Texas, see Appellants’ Brief at 24-27.
Page 10
In response, Trinidad Limited does not directly address these arguments.
Instead, it attempts to confuse the issues by addressing straw-men arguments.
A. Plaintiffs’ claims are not based on veil piercing; Trinidad Limited is
subject to jurisdiction for its own contacts with drilling operations in
Texas.
In section I(A)(1) of its response brief, Trinidad Limited mischaracterizes
Plaintiffs claim as one based on veil piercing and therefore asserts that Plaintiffs
have the burden to show “the parent controls the internal business operations and
affairs of the subsidiary,” etc. However, as discussed in section II above, that is
not the case. Plaintiffs do not assert liability or jurisdiction based on any improper
corporate relationship with Trinidad Limited’s subsidiary. Rather, liability and
jurisdiction are based on allegations and evidence that Trinidad Limited itself
directly set policies and exercised control over particular activities in Texas.
Trinidad Limited’s participation in such activities constitutes direct contact with
Texas, regardless of whether the policies were ultimately executed by its own
employees, a subsidiary’s employees, or an unaffiliated entity’s employees. This
issue has been addressed in more detail in section II above.
B. Michiana supports jurisdiction in this case.
In section I(A)(2) of its response brief, Trinidad Limited mischaracterizes
Plaintiff’s arguments as asserting that it is subject to jurisdiction solely because the
“effects” of Trinidad Limited’s negligence were “felt in Texas” or because its
Page 11
negligence “cause[d] an injury in Texas.” By virtue of this mischaracterization,
Trinidad Limited asserts that Plaintiff’s arguments are barred by Michiana.
However, nothing could be further from the truth. To the contrary, Michiana’s
analysis fully supports the exercise of jurisdiction in this case.
Michiana dealt with a contract between a mobile-home purchaser in Texas
and a mobile-home seller in Indiana. Michiana Easy Livin' Country, Inc. v. Holten,
168 S.W.3d 777, 784 (Tex. 2005). The contract resulted from an unsolicited phone
call initiated from Texas by the purchaser, and the seller had no other contacts with
Texas. Id. The purchaser sued the seller for breach of contract and for
misrepresentation.
Under these circumstances, the Texas Supreme Court held that the seller was
not subject to jurisdiction in Texas. In doing so, the Texas Supreme Court
disapproved of prior decisions holding that a single phone call, without more,
would establish jurisdiction in Texas. Id. at 791-92. However, Michiana did not
otherwise alter existing law. Instead, the Texas Supreme Court (as it had to do)
acknowledged prior United States Supreme Court precedent holding that
jurisdiction could be based on a tort’s “effects” in a forum state in certain
circumstances. The significance of Michiana is simply that it construed the United
State Supreme Court as holding that jurisdiction could not be based solely on the
“effects” or “brunt” of harm on the plaintiff, as such a standard would make
Page 12
jurisdiction turn on the location of the plaintiff. See, e.g., id. at 789-92. But this is
not a new principle, as the United States Supreme Court has emphasized that the
jurisdictional analysis is based on the relationship between the defendant, the
forum state, and the litigation. E.g., Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414, (1984) (citing Shaffer v. Heitner, 433 U.S. 186, 204
(1977)).
As is readily apparent, Michiana does not adversely affect Plaintiffs’ case in
the slightest, as Plaintiffs do not assert jurisdiction simply because the “effects” of
Trinidad Limited’s torts were felt in Texas. Instead, this case falls squarely within
principles of Calder v. Jones and similar cases, as construed in Michiana. In
Calder, the plaintiff’s claims of a plaintiff in California “arose from” allegations
that a writer and editor made a defamatory article about the plaintiff. Id. at 789
(citing Calder v. Jones, 465 U.S. 783, 785 n.2 (1984)). The writer and editor did
not themselves take any action in California, but they were aware that their
employer would widely publish the article in California, and that the effects of the
article would be felt there. Id. (citing Calder, 465 U.S. at 785 n.2 (1984)). The
United States Supreme Court therefore held that the writer and editor were subject
to jurisdiction in California because they had “directed” a tort to California. Id.
(citing Calder v. Jones, 465 U.S. 783, 785 n.2 (1984). As characterized by the
Texas Supreme Court, the significance of Calder v. Jones does not depend on
Page 13
whether a tort was committed, but rather simply that the writer and editor knew
and intended that a third-party (their employer) would extensively publish the
article in California. Id. Thus, under the Texas Supreme Court’s characterization
of Calder, a tort directed to Texas will support jurisdiction so long as “the
defendant's conduct and connection with the forum” play a critical role. Id. at 789.
Here the uncontroverted allegations and evidence show that “[Trinidad
Limited]’s conduct and connection with [Texas] play a critical role.” See Id. at
789. Plaintiffs’ claims “arise from” allegations that Trinidad Limited (the parent
company) set safety policies for drilling operations, exercised control over drilling
operation, etc. See Appellants’ Brief at 14-16. The uncontroverted allegations and
evidence then demonstrate that it knew and intended that its policies would govern
both personnel and property related to drilling activities in Texas. See Appellants’
Brief at 16-27. As such, its policies necessarily availed itself of Texas law, since
the laws of Texas would govern the propriety of such operations. Moreover,
Trinidad Limited took affirmative action to ensure that its policies would be
carried out in Texas. Indeed, the facts in this case go well beyond the facts of
Calder, since the implementation of these policies was partially done by Trinidad
Limited’s own employees while physically located within the boundaries of Texas.
The fact that the policies themselves were ultimately carried out by employees of
another entity (its subsidiary) makes no difference, just as it made no difference in
Page 14
Calder that the defamatory statements were shipped to California by another entity
(the employer). Trinidad Limited has purposefully availed itself of Texas law, and
this action arises from Trinidad Limited’s own contacts with Texas.
C. Trinidad Limited has not controverted Plaintiffs’ allegations and
evidence of jurisdiction.
Finally, in section I(B) and I(C) of its response brief, Trinidad Limited
asserts that it has controverted Plaintiffs’ allegations and evidence. However, it
has done nothing of the kind. As to the allegations, Trinidad Limited simply
repeats its arguments regarding veil piercing, which are discussed at length above.
As explained in Plaintiffs’ opening brief, Trinidad Limited has not controverted
Plaintiffs’ allegations, such as:
 “At all relevant times” Trinidad Limited “exercised . . . control
and took responsibility for overseeing safety policies and
procedures for the crews on the drilling rigs.”
C.R.38 ¶ 4.07. Indeed, Trinidad Limited produces no evidence regarding the
“relevant time period” whatsoever.
As to the evidence, Plaintiffs anticipated and addressed Trinidad Limited’s
argument in their opening brief. See Appellants’ Brief at 16-27. For instance, as
to the “remedial measures,” Plaintiffs’ demonstrated that Mr. Foreman (whatever
his other roles) was acting as an agent of Trinidad Limited (the parent company)
and that he was not simply reporting on an investigation. See Appellants’ Brief at
18-21. To the contrary, his own memo shows that he participated directly in
Page 15
setting and implementing remedial policies in connection with operations in Texas,
the rest of America, and Canada. See C.R.79-80. Although such remedial
measures cannot be used to show negligence, they are affirmative evidence of
“control” at the time of the accident. See Tex. R. Evid. 407. Likewise, the
remaining evidence demonstrates that Trinidad Limited controlled and set policies
for operations exactly as explained in the opening brief.
More importantly, Trinidad Limited does not even address the most
significant allegations and evidence cited in the opening brief—the allegations and
evidence that Trinidad Limited intended, and took steps to ensure, that its policies
would be carried out in Texas. This issue is fully addressed in Plaintiffs’ opening
brief, which demonstrated that Trinidad Limited is subject to specific jurisdiction
for its own acts. See Appellants’ Brief at 24-27.
V. Trinidad Limited is also subject to general jurisdiction based on its own
acts.
Finally, in section VI of their opening brief, Plaintiffs demonstrated that
Trinidad Limited is also subject to general jurisdiction in Texas, most notably by a
high-level manager maintaining an office in Texas. Although general jurisdiction
does not require physical presence in the state, the physical presence of an agent or
office is sufficient to create general jurisdiction if the agent’s role is “central” to the
defendant’s business. See, e.g., RSR Corp. v. Siegmund, 309 S.W.3d 686, 708
(Tex. App.—Dallas 2010, no pet.).
Page 16
In this case, the undisputed evidence demonstrates that Rodney Foreman
acts as the “General Manager of Corporate HSE” for “Trinidad Drilling Ltd.” (the
parent company) and that he maintains an office in the Houston area. See
Appellants’ Brief at 31-32 (citing, e.g., C.R.79-80, 90-91; Supp.C.R.313). Thus,
there is no question that Trinidad Limited maintains a “physical presence” in
Texas.
Likewise, there is no dispute that this Texas presence is central to the
business of Trinidad Limited. This fact is apparent from Mr. Foreman’s title with
the parent company. Mr. Foreman is not a low-level representative; instead, he is
fairly-obviously a high-level officer: “General Manager of Corporate [Health,
Safety, and Environment]” for “Trinidad Drilling Ltd.” Moreover, this is
confirmed by the other undisputed evidence in the record. Mr. Foreman reports
directly to the executive officers of Trinidad Limited (the parent company), rather
than to intermediate managers or to officers of any subsidiary. C.R.75-76, C.R.90-
91, Supp. C.R.329. He participates directly in the creation and implementation of
safety policies for all the drilling operations in the United States and Canada. See,
e.g. C.R. 79-80. Indeed, Trinidad Limited (the parent company) has expressly
cited Mr. Foreman as its spokesman for safety issues in communications with its
investors. Supp. C.R.313.
Page 17
In response, Trinidad Limited asserts that “Rodney Foreman is not employed
by Trinidad Ltd.; he is employed by Trinidad L.P.” Appellee’s Brief at 18-19.
However, this assertion is both a misstatement of evidence and an irrelevant
statement.
First, this statement mischaracterizes the record, which is devoid of any
evidence that Mr. Foreman is not an employee of the parent company. To the
contrary, the only evidence is that Mr. Foreman is “paid by” the subsidiary. See
Supp. C.R.357. However, payment by the subsidiary does not determine whether
Mr. Foreman is also an employee of the parent, Trinidad Limited. See, e.g.,
Franka v. Velasquez, 332 S.W.3d 367, 373 (Tex. 2011) (noting that, under three-
party residency arrangement, resident was paid by one entity but under the legal
right of control of another entity); cf. Arvizu v. Estate of Puckett, 364 S.W.3d 273,
276–77 (Tex.2012) (holding that multiple entities were liable for acts of
employee).
As this Court is well aware, a person can wear multiple “hats” for multiple
entities. See e.g., Glattly v. CMS Viron Corp., 177 S.W.3d 438, 442 (Tex. App.—
Houston [1st Dist.] 2005, no pet.). In each case, the entity for which the “hat” is
being worn is likewise responsible for the employee’s actions.2 In this case,
2
In many cases, the wearing of multiple “hats” can also lead to alter-ego or other veil-
piercing issues. However, those issues are not before the Court, as discussed at length earlier in
the Texas.
Page 18
whatever other hats he may wear, Mr. Foreman is indisputably wearing the
“General Manager of Corporate HSE” hat for “Trinidad Drilling Ltd.,” and he
wears that hat in Houston, Texas.
Second, the statement is irrelevant, since this issue does not turn on whether
Mr. Foreman is an “employee,” under any definition of that term. A corporation
does not act only through “employees.” Instead, a corporation acts through all of
its “people”—whether officers, directors, employees, or agents. See Internat’l
Shoe v. Washington, 326 U.S. 310, 316 (1945). In this case, whether or not Mr.
Foreman is an “employee” under some meanings of that term, undisputed evidence
shows that he quite probably is an “officer” of Trinidad Limited for jurisdictional
purposes, and he most definitely is acting as its “agent.” Indeed, Trinidad Limited
does not even attempt to dispute this fact.
Aside from Mr. Foreman’s presence in Texas (which is sufficient in itself),
Plaintiffs also demonstrated that Trinidad Limited has a director residing in Texas,
and that its “banker” has been “Wells Fargo, N.A.” in “Houston, Texas.”
Appellants’ Brief at 32 (citing, e.g., Supp. C.R. 237; C.R. 267; C.R. 300; C.R.329;
C.R. 348. These points are adequately addressed in the opening brief and need no
elaboration.
In summary, the undisputed evidence demonstrates that Trinidad Limited
maintains a continuous physical presence in Texas, through its high-level agent,
Page 19
and that its agent’s activities are central to its business. Therefore, this physical
presence—standing alone—demonstrates that Trinidad Limited has “continuous
and systematic contacts” sufficient to make it “at home” in this forum. Moreover,
if the physical presence of its high-level agent were not independently sufficient to
establish general jurisdiction, such jurisdiction is also supported by the great
weight of evidence. Therefore, whether or not the Court concludes Trinidad
Limited is subject to specific jurisdiction, the trial court’s decision should be
overruled on the basis of general jurisdiction.
VI. Prayer
For the reasons stated above, Plaintiffs respectfully pray that this Court
reverse the trial court, render a decision denying Trinidad Limited’s special
appearance, and remand this action for proceeding on the merits.
Respectfully submitted,
By /s/ Geoffrey E. Schorr
Geoffrey E. Schorr
geoff@schorrfirm.com
Texas Bar No. 24029828
A. Jared Aldinger
Texas Bar No. 24068456
jared@schorrfirm.com
SCHORR LAW FIRM, PC
328 W. Interstate 30, Suite 2
Garland, TX 75043
Tel. (972) 226-8860
Fax (972) 226-9787
Page 20
Hutton W. Sentell
Texas Bar No. 24026655
hsentell@ashmorelaw.com
ASHMORE LAW FIRM, P.C.
3636 Maple Ave.
Dallas, TX 75219
Tel. (214) 559-7202
Fax (214) 520-1550
Andrew P. McCormick
Texas Bar No. 3457100
amccormick@mlm-lawfirm.com
McCORMICK, LANZA & McNEEL, LLP
4950 Bissonnet Street
Bellaire, TX 77401
Tel. (713) 523-0400
Fax (713) 523-0408
ATTORNEYS FOR
PLAINTIFFS/APPELLANTS ADELAIDA
SALAZAR BAUTISTA a/k/a ADELAIDA
ALVARADO, Individually, and as next
friend of MARIA JENNIFER AIDE a/k/a
MARIA JENNIFER ALVARADO, A. A.,
A. A., I. S. A., M. A., and E. A., Minors
and
By: /s/ Justin K. Hall
Justin K. Hall
Texas Bar No. 90001828
jkhall@justinkhall.com
328 W Interstate 30, Suite 2
Garland, Texas 75043
Tel. (972) 226-1999
Fax (972) 226-2221
Attorney for Plaintiffs, Irineo Alvarado and
Maria Ana Moctezuma
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of
TEX. R. APP. P. 9.4(i)(2)(B) because it contains 4,445 words, excluding the parts of
the brief exempted by TEX. R. APP. P. 9.4(i)(1). In making this certification, I
am relying on a word count performed by the Microsoft Word software used to
prepare this brief.
By /s/ Geoffrey E. Schorr
CERTIFICATE OF SERVICE
I hereby certify that on April 13, 2015, a true and correct copy of this
Appellants’ Brief was served on counsel for Appellee via: the Texas e-file system
which will send a notice of this electronic filing to Michael Beckelman and Sean
Higgins, at their email addresses on file with the electronic filing manager.
By /s/ Geoffrey E. Schorr
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